This article is written by Harshita Agrawal. It provides an in-depth analysis of the landmark judgement of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014). The article highlights the issues raised in the case, the judicial procedures involved, and the fundamental rights of citizens. The discussion examines the implications for the judicial process in death penalty cases, balancing judicial efficiency with the fundamental rights of the accused. The judgement is analysed and reinforced with references to many prior cases, providing a thorough understanding of the court’s rationale and decision.

Introduction 

In the landmark case of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014), Mohd. Arif was sentenced to death under Sections 121 and 320 of the Indian Penal Code, 1860 (IPC) by the Trial Court. The decision was upheld by the High Court on appeal, as the Court was of the opinion that review petitions in death sentence cases should be handled by a panel of at least five judges. However, the need for a larger bench was not necessary in the opinion of the Supreme Court, but they insisted on oral hearings because a death sentence is final and involves the fundamental right to life. The change in the Supreme Court Rules, 2013 (Order XL Rule 3) was also discussed by the Court, eliminating the requirement for oral court hearings in review petitions. The article provides a detailed examination of the case, focusing on how review petitions are handled and highlighting the implications for the judicial process in death penalty cases. These discussions focused on how to balance the need for efficient court procedures with safeguarding the fundamental rights of the accused.

Details of the case 

  • Name of the case: Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India & Ors
  • Name of the court: Supreme Court of India
  • Date of judgement: 2 September, 2014
  • Citation: 2014 (9) SCC 737
  • Jurisdiction: Criminal Original Jurisdiction
  • Bench: Justice Rohinton Fali Nariman, Justice Chelameswar, Justice A. K. Sikri, Justice Jagdish Singh Khehar, and Justice R. M. Lodha
  • Petitioner: Mohd. Arif @ Ashfaq
  • Respondent: The Registrar, Supreme Court of India

Background of the case 

Our judicial system is built upon principles designed to protect the rights of individuals presumed innocent until proven guilty. It guarantees that every accused person is given adequate opportunities to present their defence, ensuring a fair trial process. A person can only be convicted if their guilt is established beyond any reasonable doubt. This case serves as a prime example of how our legal system allows accused people to prove their innocence through due process and legal procedures. The case of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014) involved serious charges like threatening national security and conspiracy related to unlawful acts under Sections 121 and 320 read with Section 120B of the IPC. The case involved appeals and review petitions to challenge the sentences related to death punishments by the lower courts. It highlights the need for fair and trial standards in judicial proceedings and adherence to strict legal procedures in dealing with such legal avenues. The decision of the Supreme Court has a big impact, particularly in cases related to the death penalty and constitutional rights in criminal proceedings, and also on how future cases are handled, focusing on legal rules and fairness to ensure justice within the framework of the country’s judicial system.

Download Now

Facts of Mohd. Arif @ Ashfaq vs. The Reg. Supreme Court of India (2014) 

A gunfire broke out inside Lal Quila, commonly known as Red Fort, on the evening of 22nd December, 2000. The 7th Rajputana Rifles of the Indian Army regiment were stationed, and intruders broke in, resulting in the tragic deaths of three army jawans who were targeted with AK-56 rifles. The attackers escaped the scene over Lal Quila’s rear boundary wall towards Ring Road after the army’s rapid response team returned fire.

Soon after the attack, phone calls were made to two BBC reporters, one in Srinagar and the other in Delhi. The responsibility for the attack was taken by Lashkar-e-Taiba, a banned militant group known for terrorist activities in India.

Many firearms and ammunition were found after the incident. An AK-56 rifle was discovered on Ring Road near Vijay Ghat, and cartridge cases were recovered from the scene. A piece of paper with a mobile number written on it was found near Lal Quila’s boundary wall, which was claimed to be the same mobile number used to call the BBC correspondents. The police found the phone number registered to Mohd. Arif, also known as Ashfaq, at his apartment in Flat No. 308-A, Ghazipur, New Delhi, leading to the police reaching him.

He was arrested for being a suspect in the shooting. The police found a pistol and live ammunition on him, and he did not have a licence for these firearms. He also disclosed the location of additional weapons and ammunition, including three hand grenades underneath his computer centre, from Okhla. The AK-56 rifle that was used at the crime scene was disclosed by him, as were another AK-56 rifle and ammunition behind Lal Quila.

During the investigation, it was found that Mohd. Arif had a false identity as a shawl trader from Jammu. He also had forged documents such as a ration card and learner’s permit. He had made suspicious financial transactions without providing a clear source for his funds or a legitimate explanation for where the money came from.

He was charged under several sections of the IPC, as the conspiracy was totally perceived as an act of war against the Indian government. He was sentenced to death under Sections 121 and 320, read with Section 120B of the IPC, by the Trial Court. The decision was upheld by the High Court on appeal. A group petition was submitted to the Constitutional Bench of the Supreme Court to address the legal issues in this case.

Issues raised 

  • Whether cases involving the imposition of the death penalty should be considered by a bench of at least three, if not five, Supreme Court judges?
  • Whether individuals on death row who are denied an oral hearing should have their rights reconsidered if Order XL Rule 3 of the Supreme Court Rules, 2013 is unconstitutional?
  • Whether petitions in death sentence cases should be reviewed only in open court rather than by circulation?

Arguments of the parties

Petitioners 

The learned counsel of the petitioner presented the fact that death sentence cases form a different category within the legal system. As per Article 134 of the Indian Constitution, an automatic right to appeal is granted to the Supreme Court in cases including the death penalty. Under Section 354(3) of the Code of Criminal Procedure, 1973, the special reasons must be recorded in death sentence cases, and such sentences must be implicated and should only be imposed in the rarest of rare circumstances. The constitutionality of the sentence of the death penalty was upheld in the case of Bachan Singh vs. State of Punjab, 1980, under Section 302 of the IPC and Section 354(3) of the CrPC. The doctrine of rarest of rare circumstances was introduced where only those criminals can be punished with the death sentence who commit extremely terrible and unusual crimes. This rule was created to make sure the death penalty is used only in the most extreme cases. It was contended that the death penalty violated Articles 14, 19, and 21 of the Indian Constitution. However, the Court rejected the contentions. The Supreme Court, in its hearing, gives priority to death sentences over other matters. It was argued that a point highlighted in various articles by Justice Bhagwati emphasised that the imposition of death sentences often depends on the subjective interpretations of individual judges. The application of the death penalty can vary significantly depending on an individual judge’s beliefs, values, and understanding of the law, rather than being based on objectives. The 187th Law Commission Report (2003) recommended that a bench of at least five Supreme Court judges must hear the cases relating to the award of a death sentence. 

The argument was made that even if death sentence cases are initially heard by a bench of three judges, two additional judges should be added at the review stage to ensure that a panel of five judges conducts the review. The petitioner’s counsel argued that since the petitioner had already spent over 13 years in jail, imposing the death penalty would be harsh at this stage. 

Respondent

The respondent mentioned Section 362 of the CrPC, which states that initially, no review petitions are allowed for criminal cases. However, he did not challenge or press any charges regarding this fact. He also argued that the Court is under immense pressure due to its heavy workload and cannot pay attention to reviewing petitions repeating the same cases that already overload the judicial system.

Law discussed in Mohd. Arif @ Ashfaq vs. The Reg. Supreme Court of India (2014)

Order XL Rule 3 of Supreme Court Rules, 2013

Order XL Rule 3 of the Supreme Court Rules, 2013 deals with the review petitions filed in the Supreme Court in order to reconsider its judgement. These petitions are accepted by the Court if there is any clerical error found in the judgement or the order being passed due to a lack of evidence, and after the declaration of the judgement, the new evidence has been discovered. The procedure under this rule is that the judge who passed the judgement would first look into the matter before anyone, and if he is of the opinion that there is no valid reason to review the petition, he can dismiss the petition without a hearing. However, for serious crimes and terrible acts that led to the death penalty, a larger group of judges is required to ensure a fair and transparent decision in the case.

In the case of Mohd. Arif vs. The Registrar, Supreme Court of India (2014), the review petitions were to be heard by a bench of five judges for the decision. However, the rules that allowed for oral hearings at the review stage, especially in cases of the death penalty, to uphold the fundamental rights to life and ensure careful judicial review provide an additional way for the Court to rectify its mistakes, if any, or to reconsider any evidence or any new evidence, ensuring the fairness of the decision.

Article 21 of the Indian Constitution

Article 21 confers on every person the fundamental right to life and personal liberty. It says that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to life includes those things that make life meaningful. The right to life enshrined in Article 21 guarantees the right to live with human dignity.

The case of Mohd. Arif discusses the necessity of standard procedures in dealing with review petitions in death sentence cases with fairness and justice. Article 21 of the Indian Constitution is crucial because it ensures a fair and just legal process, especially when a death sentence is involved.

Article 134 of the Indian Constitution

Article 134 states the Supreme Court’s appellate jurisdiction in criminal matters. An appeal can be made to the Supreme Court from any judgement, final order, or sentence in criminal proceedings of a High Court in India if the High Court 

  • has reversed an acquittal order on appeal and sentenced the accused to death or 
  • has taken over a case from a subordinate court that convicted the accused and sentenced them to death. 

Article 134A certifies that the case is fit for appeal to the Supreme Court, provided that an appeal under sub-clause (c) shall lie subject to provisions under clause 1 of Article 145 of the Indian Constitution as the High Court may establish or require.

Parliament may grant the Supreme Court additional powers to hear and entertain appeals from a judgement, final order, or sentence in a criminal proceeding of a High Court in India, subject to specified conditions and limitations.

The case of K.M. Nanavati vs. State of Maharashtra (1962) was a high profile and sensitive murder trial and played a significant role in the abolition of the jury system in India. It was initially tried before a jury, whose verdict was subsequently set aside by the Bombay High Court. The case was then appealed to the Supreme Court under Article 134.

Article 134 of the Constitution of India is important in the case to determine the need for people on death row to get fair treatment and to ensure that the cases are thoroughly reviewed at the authorised judicial level. 

Article 137 of the Indian Constitution

Article 137 refers to the review of judgements or orders by the Supreme Court. The Supreme Court has the authority to review any of its judgements or orders, subject to any laws enacted by Parliament or rules established under Article 145.

In the case of the State of Haryana vs. Kamal Co-Operative Farmer’s Society (1994), the Supreme Court exercised its review jurisdiction under Article 137 to correct an error apparent on the face of the record. The Court emphasised that the power of review should be exercised sparingly and only in cases of clear error.

The case of Mohd. Arif focuses on the review petition process for the death sentence cases, where the Court clearly stated the necessity for limited oral hearings to ensure justice is served and the principles of natural justice are upheld.

Section 121 IPC

Under Section 121 of the IPC, which deals with the essentials of the offences in order to prove an offence for waging war against the government of India, those found guilty in the act of waging war, attempting to wage war, or abetting the waging of war against the government of India shall be punished with death or life imprisonment and shall also be liable to a fine. 

The principles in the case of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014) discussed the doctrine of ‘rarest of rare cases’ that restricted the scope of the death penalty as it should only be used for extreme and terrible crimes. In the case of the Mumbai Terror Attack, also known as the 26/11 attacks, the primary offence was waging war against the government of India. The attack was by foreign nationals and aimed to harm Indians and India. The objectives included escalating communal tensions, affecting the financial situation of the country, and pressuring India to surrender Kashmir. The ‘rarest of rare’ rule was applied here because the nature of the crime was exceptionally horrible, clarifying that death punishment is to be considered right for the worst crimes.

Section 302 IPC

Section 302 of the IPC specifies the punishment for murder. Under Section 302, if a person is found guilty of murder, he/she can be punished with either life imprisonment or the death penalty along with a fine. The accused undergoes a trial and is sentenced according to the law. The primary reason and motive of the accused are crucial considerations in determining the right punishment. The offence of murder is non-bailable, cognizable, and triable by the Session Court.

In the case of Mukesh and Anr vs. State of NCT Delhi (2012), also known as the Nirbhaya gangrape case, the Court sentenced the four accused to death after eight years. Under Section 302, the death penalty can be given in cases where the offence of rape results in the victim’s death. The Juvenile Justice (Care and Protection of Children) Act (2015) replaced the Juvenile Justice (Care and Protection of Children) Act (2000). As per the Amendment, people aged 16 to 18 can now be punished for serious crimes such as rape and murder. This change was made after the Nirbhaya rape case, where one of the accused received only three years of imprisonment because he was 17 years old at the time of the crime.

Judgement of the case

The case of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014) dealt with the punishments related to death penalties. The Supreme Court, in its judgement, held that review petitions must be heard by a bench of at least three judges so that the fact and seriousness of death sentences could be dealt with in a more fair manner. The Court stated that oral hearings should only be heard in open court and not when the decisions are based on written documents. The rights of the accused were emphasised, and recommendations from the larger benches should be implied to ensure the constitutionality of procedural rules.

Rationale behind this judgement

The importance of oral hearings was recognised by the Constitutional Bench during the in-person hearing of the case, and it was concluded that the court’s review of the case was not up to standard. It was held that the criteria of the principle of audi alteram partem (hear the other side) should be wisely followed before making a rational decision. The Hon’ble Court also clarified that deciding a review petition by circulation meant not to be open court hearings but the procedure of meeting, deliberating, and reaching a collective decision during a judicial conference should be collectively completed by judges. All the judicial proceedings need not be publicly shown up, but the necessity of fair and trial judgements considered by impartial judges and the right to be fairly heard to present one’s case should be mandated before deciding a judgement.

The arguments can be presented before a court in any manner, be it oral, written, or depending on the circumstances of the situation. The exclusion of oral presentations is completely unfair when they are necessary for perusal, but it is completely acceptable when they are not essential. The Court found that in many other jurisdictions, public hearings are not held for simple cases, thus justifying the need for the rule because there are a larger number of cases and the unnecessary filing of too many review petitions. Under Article 137, the power to review is granted and is equally broad in all types of proceedings directing the exercise of this power without any limitations for this rule. Article 137 derives substantive power and is sufficient to cover both civil and criminal proceedings.

Issue-wise judgement

Whether cases involving the imposition of the death penalty should be considered by a bench of at least three, if not five, Supreme Court judges?

The Supreme Court, in view of an Amendment to Order 6 Rule 3 of the Supreme Court Rules, 2013, concluded by a 4:1 majority by introducing a provision that the case involving death punishment must be reviewed by a bench of at least three judges. This rule was added, and the need to have at least three judges to look at the case together was to make sure that the decision was correct and transparent and that there should not be any mistakes. In cases like Bachan Singh vs. State of Punjab, 1980, in which the death sentence is awarded by the High Court and appeals are made against those cases in the Supreme Court, the Court clearly addressed the fact that the presence of three judges is mandatory.

Whether individuals on death row who are denied an oral hearing should have their rights reconsidered if Order XL Rule 3 of the Supreme Court rules is unconstitutional?

The Court noted that in death penalty cases, the words spoken had a whole different effect and power, even if the chances of success were low. It was decided that the right to an oral hearing of the review petition is limited to only pending petitions and future petitions. This right also applies where the death sentence is yet to be decided. However, those already on death row who are not allowed an oral hearing should have their rights reconsidered unless found unconstitutional. When a person is sentenced to death, it is very important to ensure that they receive a thorough and fair review of the case. For these specific cases, the petitioners were given the liberty to apply for reopening of their review petitions within one month from the date of the judgement delivered. However, cases where even a curative petition had been dismissed were specifically denied the opportunity for that limited hearing relief. The case of Mohd. Arif vs. The Registrar, Supreme Court of India (2014) specified that the rules of oral hearings allowed by the court during the review stage, especially in cases of the death penalty, ensure the protection of the right to life and a fair review, and also provide another chance for the Court to rectify any mistakes or to consider any new evidence that might have emerged to make sure that the final decision made was fair and correct.

Whether petitions in death sentence cases should be reviewed only in open court rather than by circulation?

The Supreme Court, in the case of Mohd. Arif @ Ashfaq vs. The Registrar, Supreme Court of India (2014), stated the importance of oral hearings in reviewing petitions for the safety of fundamental rights to life, especially in cases related to death penalty sentences. The Court concluded that these petitions should only be heard in an open court, so that public hearings should be conducted to avoid any kind of bias and not by the circulation of written submissions alone. The need for careful judicial review and protection of the fundamental rights of the citizen to make sure that all the points are thoroughly covered and considered before issuing a death penalty punishment was the key ingredient in this decision. It was also mentioned that the level of fairness and transparency cannot be granted where the death penalty cases are only examined through written documents and without a proper court hearing. In cases of the death penalty that involve serious crimes, it is essential to carefully examine and hold transparent hearings to ensure that the process remains fair and just.

Analysis of Mohd. Arif @ Ashfaq vs. The Reg. Supreme Court of India (2014) 

In Maneka Gandhi vs. Union of India (1978), the Supreme Court held that the procedure established by law must be just, fair, reasonable, and not arbitrary. Previously, in A. K. Gopalan vs. State of Madras (1950), a bench of six judges had interpreted Article 21 of the Indian Constitution textually. Justice Kania concluded that the term “personal liberty” in Article 21 is more limited compared to its broader interpretation under the U.S. Constitution, where it includes property rights.

This laid the groundwork for the Maneka Gandhi judgement, which determined that Article 21 should be interpreted along with other fundamental rights. As a result, both the procedure established by law and the law itself must be just, fair, and reasonable, integrating Articles 14 and 19 into the interpretation of Article 21.

In the case of Sunil Batra vs. Delhi Administration, (1979), the issue was whether a person awaiting the death sentence could be held in solitary confinement. Justice Krishna Iyer said that although the Indian Constitution lacks a “due process” clause like the American Constitution, similar results were reached through the rulings in the Maneka Gandhi case and the Bank Nationalisation case (Keshavnanda Bharati vs. State of Kerala, 1973), where it was clearly stated that the principles of justice and fairness were the most integral part of the Constitution. This case signified that the basic structure of the Indian Constitution could not be changed or removed. The key aspects and pillars of Indian democracy, along with its undivided power, should be followed by the rule of law.

By drawing from landmark cases like Maneka Gandhi vs. Union of India (1978), A. K. Gopalan vs. State of Madras (1950), and Sunil Batra vs. Delhi Administration (1979), the Court reinforced that both the law and the judicial procedures must be just, fair, and reasonable, as the decision not only handles the implications of review petitions in death sentence cases but also interprets the fundamental rights in a broader precedent in the Indian judicial system.

Aftermath of the case

The case led to reformation of death sentence review hearings. This case mandates open court hearings for rigorous punishments, such as death penalty cases, which should be properly evaluated. This increases judicial transparency and public trust. The case set a precedent for future cases, ensuring they all have the right to a fair hearing. Although it’s not directly stated, the spotlight on death penalty cases might have caused the public and judges to have deliberate opinions in determining when to impose the death penalty cases.

Mercy petition, 2024

President Droupadi Murmu has rejected the mercy plea of Mohammed Arif, also known as Ashfaq. He is a Pakistani national and a member of the group Lashkar-e-Taiba who was sentenced to death in the December 2000 Red Fort attack, where three army personnel were killed. He did not get relief from the Delhi High Court and Supreme Court against his 2005 death sentence. He can still challenge the President’s decision to prolong the proceedings.

Article 72 of the Constitution of India gives the President the power to grant pardons. This means that the President can forgive or change the punishment for people convicted of crimes, especially for death sentences or cases decided by court-martial. The President can also delay, stop, or lessen the punishment. 

Article 161 of the Constitution of India states that for state-level cases, the governor has similar powers. The governor can pardon, delay, or change sentences for people convicted of crimes in their state.

In 1980, the Supreme Court ruled that the death penalty should only be given in the “rarest of rare” cases. The 2015 Law Commission Report recommended ending the death penalty for all crimes except terrorism and war. Regarding the President’s power to grant pardons, the Law Commission Report emphasised that these ‘mercy powers’ offer additional protection against potential miscarriages of justice. Therefore, cases deemed unworthy of mercy are considered to merit capital punishment.

In 2007, the Delhi High Court confirmed Arif’s death sentence. The Supreme Court rejected his appeal in 2011, calling the attack an “undeclared war by foreign mercenaries’.

He kept filing petitions against the death sentences. The review petition was rejected in 2012, and the curative petition was rejected in 2014 by the Supreme Court.

President Murmu received Arif’s mercy petition on 15 May 2024. The Supreme Court said that the President must use advice from the Council of Ministers when making such decisions. The argument could be considered unfair as an important decision was ignored and the President did not fully consider the case.

The Supreme Court has the power to change death sentences in cases where there was an excessive delay in handling mercy petitions. 

In 2014, the court reduced the sentence of Shatrugan Chauhan due to delays. The death sentence of Gurmeet Singh was also changed by the court after he spent 27 years in prison, including 21 years on death row since his delay in mercy petition was more than seven years. In April 2023, the Supreme Court agreed with the Bombay High Court’s decision to reduce the death sentence of a woman and her sister because of a long delay in their mercy petitions.

Arif has been in custody for over 23 years and under a death sentence for almost 19 years. 

Conclusion 

The decision of the Court in the above-mentioned case underscored the commitment to true and fair trial standards and the protection of the basic right to life, whether for someone accused of a crime or an ordinary person, especially in matters related to capital punishment. The Court concluded that this decision and ruling applied to all the cases, either pending or future review petitions. The cases where the review petition has already been dismissed but the death sentence has not yet been executed are also included in the decision, but the cases of curative petition dismissal were excluded. 

Frequently Asked Questions (FAQs)

What was the primary concern in this case?

The main issue in the above-specified case was reviewing the death penalty decisions and, with the correct procedures, especially for this case, whether the standard need for a three-judge bench was fulfilled.

Why is procedural fairness essential in death penalty cases?

Procedural fairness is very essential in death penalty cases to maintain the integrity of the judicial system. There must be a law justifying interference with the life of a person or personal liberty. Secondly, the law should be valid; thirdly, the procedure laid down by the law should have been strictly followed. The procedure must be fair, just, and reasonable. It must not be arbitrary, fanciful, or oppressive.

References

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here